Major Crimes Act – Page 12

Ninth Circuit Affirms Conviction of Former Fort Peck Member as “Indian” under Major Crimes Act

July 11, 2011Matthew L.M. Fletcher

Here is the opinion in United States v. Smith.

An excerpt on blood quantum:

The government presented sufficient evidence of Smith’s Indian blood to satisfy Bruce’s first prong. We have held this requirement satisfied by as little as 1/8 (12.5%) Indian blood. See Maggi, 598 F.3d at 1080; Bruce, 394 F.3d at 1223. Here, the government presented evidence that Smith has 25/128 (19.5%) Assiniboine and Sioux blood, well in excess of the 1/8 we approved in Bruce and Maggi. We acknowledge that Smith’s § 2255 motion attached a letter from the Fort Peck Tribes Enrollment Office stating that Smith “does not meet the required blood quantum of 1/8 for Associate Membership [in the Fort Peck tribes], nor 1/4 Full Enrollment.” But this evidence was not presented at trial, and even if it had been, a rational trier of fact could have chosen to credit the more specific, higher figure established by the government’s evidence.

An excerpt on the defendant’s relinquishment of tribal membership:

We recognize that Smith relinquished his tribal enrollment in 1996. This decision does not definitively show, however, that Smith or the tribe ceased to consider Smith an Indian person. See Cruz, 554 F.3d at 850 (holding that Bruce requires an analysis of Indian status from the perspective of the individual as well as from the perspective of the tribe). A tribal investigator, Tom Atkinson, testified he had known Smith for most of his life, that Smith had lived on the reservation that entire time and that, as far as Atkinson knew, Smith held himself out to be an Indian person. A rational jury could have concluded that because Smith was once formally enrolled in the tribe and continued to hold himself out as an Indian even after his enrollment ended, both Smith and the tribe continued to view Smith as an Indian despite his unexplained decision to relinquish his formal enrolled status.

Ninth Circuit Decides “Indian Status” Case under Major Crimes Act

July 6, 2011Matthew L.M. Fletcher

Here is last week’s unpublished opinion in United States v. LaBuff.

Here is an excerpt:

At trial, the government presented the testimony of Helen Butterfly (“Butterfly”), a health records lab technician at the Blackfeet Community Hospital. Butterfly testified that on the basis of LaBuff’s classification as an Indian descendant of a tribal member, he was eligible to receive healthcare services at the hospital, which is operated by the federal government and whose non-emergency services are limited to enrolled tribal members and other non-member Indians. Butterfly further testified that since May 1979, LaBuff received healthcare services from the Blackfeet Community Hospital. Because the evidence showed that LaBuff repeatedly accessed healthcare services “reserved only to Indians,” we conclude that the government sufficiently established the second Bruce factor.

Similarly, we conclude that because LaBff frequently received healthcare services on the basis of his descendent status of an enrolled member, he enjoyed the “benefits” of his tribal affiliation, as required by Bruce’s third factor.

In addition to establishing the second and third Bruce factors, the government also presented evidence that on multiple occasions, LaBuff was arrested, prosecuted, and convicted under the jurisdiction of the tribal courts. As we observed in Bruce, the assumption and exercise of tribal criminal jurisdiction is strong evidence of tribal recognition. 394 F.3d at 1227. At the time he was prosecuted, LaBuff did not challenge the authority of tribal authorities to arrest him or the exercise of tribal criminal jurisdiction. Therefore, viewing the evidence in the light most favorable to the government, we conclude that, contrary to LaBuff’s contention, the evidence was sufficient for any rational fact-finder to have found, beyond a reasonable doubt, that he is an “Indian person.”

Tenth Circuit Affirms Major Crimes Act Conviction — Domestic Violence at Zuni Pueblo

May 31, 2011May 31, 2011Matthew L.M. Fletcher

Here is the opinion in United States v. Mutte.

Tenth Circuit Rejects Constitutional Challenge to SORNA (Underlying Major Crimes Act Conviction)

May 2, 2011Matthew L.M. Fletcher

Here is today’s opinion in United States v. Yelloweagle.

An excerpt:

Alden Yelloweagle, the appellant here, was previously convicted of a federal sex offense. When he failed to register as required, he was indicted by federal authorities under the enforcement provision. Mr. Yelloweagle moved to dismiss the indictment for various reasons. Two of the reasons he offered are relevant here. First, he contended that no provision of the Constitution authorizes Congress to require all sex offenders to register. Accordingly, Mr. Yelloweagle
argued, he could not be punished for failing to comply with the requirement. Second, even if the registration requirement was valid, Mr. Yelloweagle contended that the criminal enforcement provision also lacked a jurisdictional
basis and therefore was unconstitutional. The district court denied the motion to dismiss.

In his opening brief on appeal, Mr. Yelloweagle makes no mention of the first argument regarding the registration requirement; he focuses only on the claim that Congress lacks the power to criminalize the failure to register under the
enforcement provision. The government argues that this tactical shift dooms Mr. Yelloweagle’s appeal, for if the registration requirement is presumed to be constitutional, then the criminal provision is valid under the Necessary and Proper Clause. See U.S. Const. art. I, § 8, cl. 18. We agree.

Eighth Circuit Rejects Challenge to Federal Prosecution Based on 1868 Treaty of Fort Laramie

May 2, 2011Matthew L.M. Fletcher2 Comments

Here is the opinion in United States v. Jacobs: United States v. Jacobs CA8 Opinion.

The court’s syllabus:

Argument that the government’s failure to comply with the provisions of the Fort Laramie Treaty deprived the district court of criminal jurisdiction rejected; even if Articles I and V of the treaty could reasonably be construed as establishing a jurisdictional requirement at the time the Treaty was executed, Congress’s subsequent grant of citizenship to the Indians makes them subject to all restrictions to which any citizen is subject and is evidence of a clear indication to abrogate any contrary treaty provisions.

And the briefs are here.

Tenth Circuit Affirms Sentencing in Major Crimes Act Case

April 30, 2011April 29, 2011Matthew L.M. Fletcher

Here is the unpublished opinion in United States v. Commanche.

Major Crimes Act and Voting Rights Act Linkage — Jury Pools and Voter Registration in Indian Country

April 25, 2011Matthew L.M. Fletcher

A federal court denied an American Indian prisoner habeas claim recently on grounds that he could not support his Batson argument with any evidence. Batson being the case that requires a jury of one’s peers. As anyone in Indian country knows, rarely if ever (I posit virtually never) will an American Indian being prosecuted in federal court be tried by a jury that includes even one other American Indian (articles by Doyle/Eid and Washburn).

In this order (US v Bordeaux), the court rejects claims that American Indians even in South Dakota have a Batson claim:

There can be little doubt that Native Americans constitute a distinctive group in South Dakota. The record is undeveloped as to the second prong although there was at least one Native American in the venire; the removal of juror F.C. was the subject of Bordeaux’s Batson challenge. But even if Bordeaux could establish that the representation of Native Americans in the venire was not fair and reasonable, he has failed to show that Native Americans are systematically excluded. The District of South Dakota’s Plan for the Random Selection of Grand and Petit Jurors calls for potential jurors to be called exclusively from a list of registered voters provided by the South Dakota Secretary of State. See Docket No. 7-1. The Eighth Circuit has consistently upheld the use of voter registration lists to select jury pools. Morin, 338 F.3d at 844; Sanchez, 156 F.3d at 879. Bordeaux has presented no evidence whatsoever that Native Americans living in South Dakota face obstacles in the voter registration process. Although Bordeaux argues the lack of Native Americans in the jury pool proves his case, simple statistical disparities between the number of Native Americans represented in the general population and jury pools do not by themselves establish systematic exclusion. Sanchez, 156 F.3d at 879.

There is some evidence in the continuing cases in South Dakota of Voting Rights Act violations (see Laughlin McDonald’s fine American Indians and the Fight for Equal Voting Rights, ch. 5). Maybe the ACLU Voting Rights Project and the South Dakota public/appellate defenders should get together. Ah, they probably already are.